Citation Nr: 0730821
Decision Date: 09/28/07 Archive Date: 10/09/07
DOCKET NO. 01-02 661A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to service connection for a claimed lower back
disorder.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
A.M. Ivory, Associate Counsel
INTRODUCTION
The veteran had active military service from June 1969 to
June 1971.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a December 2001 rating decision by the
Department of Veterans' Affairs (VA) Regional Office (RO) in
New Orleans, Louisiana.
The veteran testified before the undersigned Veterans Law
Judge in June 2003.
In a March 2006 Board decision the Board reopened the
veteran's claim for entitlement to service connection for a
lower back disorder and remanded the issue to the RO via the
Appeals Management Center for further development.
FINDINGS OF FACT
1. The veteran's service medical records showed that the
veteran had back pain during service.
2. Medical opinion states that the veteran's claimed back
condition was not directly or proximately related to any
incident or occurrence of military service, instead it was
likely due to age or intercurrent causes.
CONCLUSION OF LAW
The veteran's claimed lower back disability is not due to
disease or injury that was incurred in or aggravated by
active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103,
5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102,
3.159, 3.303, 3.304(f) (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duty to Notify and Assist
Initially, the Board notes that, in November 2000, the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000) was signed into law. See
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 &
Supp. 2005). To implement the provisions of the law, VA
promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a),
3.159, 3.326(a) (2006).
VCAA and its implementing regulations include, upon the
submission of a substantially complete application for
benefits, an enhanced duty on the part of VA to notify a
claimant of the information and evidence needed to
substantiate a claim, as well as the duty to notify the
claimant what evidence will be obtained by whom. 38 U.S.C.A.
§ 5103(a); 38 C.F.R. § 3.159(b).
In addition, they define the obligation of VA with respect to
its duty to assist a claimant in obtaining evidence.
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).
Considering the duties imposed by VCAA and its implementing
regulations, the Board finds that all notification and
development action needed to fairly adjudicate the claim on
appeal has been accomplished.
In June 2001 the RO sent the veteran a letter informing him
that to establish entitlement to service-connected
compensation benefits the evidence must show credible
supporting evidence of a disease or injury that began in or
was made worse during service, or that there was an event in
service which caused injury or disease; a current physical or
mental disability; and a relationship between the current
disability and an injury, disease or event in service.
The Board accordingly finds that the veteran has received
sufficient notice of the information and evidence needed to
support his claim and has been afforded ample opportunity to
submit such information and evidence.
The June 2001 letter, a March 2004 letter, and an August 2006
letter satisfy the statutory and regulatory requirement that
VA notify a claimant, what evidence, if any, will be obtained
by the claimant and what if any evidence will be obtained by
VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002)
(addressing the duties imposed by 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b)).
The June 2001, March 2004, and August 2006 letters advised
the veteran that VA is responsible for getting relevant
records from any Federal Agency including medical records
from the military, VA hospitals (including private facilities
where VA authorized treatment), or from the Social Security
Administration. The letters also advised the veteran that VA
must make reasonable efforts to help the veteran get relevant
records not held by any Federal agency, including State or
local governments, private doctors and hospitals, or current
or former employers.
The letter advised the veteran that it was his responsibility
to provide the RO with enough information about the records
to enable the RO to request them from the person or agency
having them, and advised the veteran that it was his
responsibility to make sure the records were received by VA.
In the decision of Pelegrini v. Principi, 18 Vet. App. 112
(2004), the United States Court of Appeals for Veterans
Claims (Court) held that proper VCAA notice should notify the
veteran of: (1) the evidence that is needed to substantiate
the claim(s); (2) the evidence, if any, to be obtained by VA;
(3) the evidence, if any, to be provided by the claimant; and
(4) a request by VA that the claimant provide any evidence in
the claimant's possession that pertains to the claim(s). As
explained hereinabove, the first three content-of-notice
requirements have been met in this appeal.
The Board notes that the record does not show that the
veteran was advised of the fourth content-of-notice
requirement under Pelegrini (request that the claimant
provide any evidence in his possession that pertains to the
claim).
However, even though the veteran was not expressly advised to
"give us all you've got" the Board finds that this
requirement has been constructively satisfied.
As noted, the veteran has been advised of the evidence
required to support a claim for service connection and of the
evidence of record. The Board finds that he has accordingly
been constructively invited to give VA all the relevant
evidence in his possession not already of record at VA.
Pelegrini also held that the plain language of 38 U.S.C.A.
§ 5103(a) (West 2002), requires that notice to a claimant
pursuant to the VCAA be provided "at the time" that, or
"immediately after," the Secretary receives a complete or
substantially complete application for VA-administered
benefits. In that case, the Court determined that VA had
failed to demonstrate that a lack of such pre-adjudication
notice was not prejudicial to the claimant.
As indicated, in the matters now before the Board, documents
fully meeting the VCAA's notice requirements were provided to
the veteran after the rating action on appeal. However, the
Board finds that any arguable lack of full pre-adjudication
notice in this appeal has not, in any way, prejudiced the
veteran.
The Board notes that the Court has held that an error in the
adjudicative process is not prejudicial unless it "affects a
substantial right so as to injure an interest that the
statutory or regulatory provision involved was designed to
protect such that the error affects 'the essential fairness
of the [adjudication].'" Mayfield v. Nicholson, 19 Vet.
App. 103 (2005), rev'd on other grounds, Mayfield v.
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).
The Board finds that, in this appeal, any delay in issuing
section 5103(a) notice was not prejudicial to the veteran
because it did not affect the essential fairness of the
adjudication, in that his claim was fully developed and
readjudicated after notice was provided.
As indicated, the RO gave the veteran notice of what was
required to substantiate the claim on appeal, and he was
afforded an opportunity to submit such information and/or
evidence.
Hence, the Board finds that any failure on VA's part in not
completely fulfilling the VCAA notice requirements prior to
the RO's initial adjudication of the claims is harmless. See
ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir.
1998); Cf. 38 C.F.R. § 20.1102 (2006).
More recently, the Board notes that, on March 3, 2006, during
the pendency of this appeal, the Court issued a decision in
the consolidated appeal of Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006), which held that the VCAA notice
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b) apply to all five elements of a service connection
claim (veteran status, existence of a disability, connection
between the veteran's service and that disability, degree of
disability, and effective date pertaining to the disability).
In this appeal, the first Dingess element (veteran status) is
not at issue, and as noted above the June 2006 letter advised
the veteran of the second and third Dingess elements
(existence of a disability and connection between the
veteran's service and that disability).
In regard to fourth and fifth Dingess elements (degree of
disability, and effective date pertaining to the disability),
it does not appear that the RO advised the veteran of these
elements, but the Board finds that the omission is harmless.
The Board's decision below denies service connection for the
claimed disability, so no degree of disability or effective
date will be assigned. There is accordingly no possibility
of prejudice to the veteran under the notice requirements of
Dingess.
The Board also notes that there is no indication whatsoever
that any additional action is needed to comply with the duty
to assist the veteran in connection with the claim on appeal.
The veteran's service medical records and post-service VA
medical records have been associated with the claims file.
Neither the veteran nor his representative has identified,
and the file does not otherwise indicate, that there are any
other VA or non-VA medical providers having existing records
that should be obtained before the claims are adjudicated.
The veteran had a VA medical examination in March 2007.
The veteran was afforded a hearing before the undersigned
Veterans Law Judge in March 2007.
Under these circumstances, the Board finds that the veteran
is not prejudiced by the Board proceeding, at this juncture,
with an appellate decision on the claim for service
connection for claimed lower back disability.
II. Analysis
Service connection may be granted for disability resulting
from disease or injury incurred or aggravated during a
veteran's active service. 38 U.S.C.A. § 1110 (West 2002); 38
C.F.R. § 3.303 (2006).
Service connection may be granted for any disease diagnosed
after discharge from service when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
In order to prevail on the issue of service connection there
must be: medical evidence of a current disability; medical
evidence, or in some cases lay evidence, of in-service
occurrence or aggravation of a disease or injury; and,
medical evidence of a nexus between an in-service disease or
injury and the current disability. Hickson v. West, 12 Vet.
App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346
(1999).
The RO first denied service connection in July 1971 and then
denied reopening the veteran's claim for service connection
for a back disability in December 2001, based on new and
material evidence. In March 2006 the Board reopened the
veteran's claim and then remanded for further development.
The Board notes that the veteran's service medical records
revealed that the veteran was treated for back pain in-
service however, the veteran's separation physical
examination stated that the veteran's back was normal.
In July 1998 the veteran had x-ray studies done at the VA
medical center and it was noted that the veteran's alignment
was satisfactory. Moderate narrowing of the intervertebral
disc space at L5-S1 level was demonstrated. The appearance
was consistent with degenerative changes in the disc and
there were moderate degenerative arthritic changes present at
the facet joints at L5-S1 level, more prominent on the right
side. There were no other significant abnormalities
identified and the remainder of the examination was within
normal limits.
In March 2007 the veteran had a VA medical examination where
he stated he hurt his back in a jeep accident during active
duty. The veteran stated that he was treated in service for
back pain and that he developed back pain again about six to
seven years prior to the examination. The VA examiner stated
that the veteran walked with a normal gait and that the
veteran's symptoms were referable to paraspinous musculature
in the lumbar region. The veteran complained of pain to
light touch in that area as well as, pain with every motion
at the extremes and with rotation of the upper body from the
hips however, the examiner noted that there was no objective
evidence of pain. X-ray studies of the lumbosacral spine
revealed small anterior spurring on the superior and inferior
bodies of the L5 vertebra consistent with the patients age.
The VA examiner stated that the veteran's subjective
complaints of pain were not supported by objective physical
findings. The VA examiner stated that the veteran was five
of five positive for Waddell signs which indicated extreme
exaggeration and pain behavior. As a result the examiner was
unable to say what the veteran's actual impairment was and
that he was also unable to say if the veteran had any
impairment at all. The examiner stated that the small
spurring was consistent with age. He opined that there was
no way to medically explain that the jeep accident in 1970
would be related to the current x-ray findings and that the
physical findings were all negated by the veteran's
exaggeration. The VA examiner opined that it was more likely
or very likely to be the result of his age and the heavy work
that he did over the last 30 years.
The Board notes that the findings of a physician are medical
conclusions that the Board cannot ignore or disregard.
Willis v. Derwinski, 1 Vet. App. 66 (1991). However, the
Board is free to assess medical evidence and is not obligated
to accept a physician's opinion. Wilson v. Derwinski, 2 Vet.
App 614 (1992).
The VA examiner stated that he could not identify ay actual
impairment to the veteran's back. The Board notes that if
there is no impairment that Congress specifically limits
entitlement to service-connected disease or injury where such
cases have resulted in a disability and in the absence of a
proof of present disability there can be no claim. Brammer
v. Derwinski, 3 Vet. App. 223, 225 (1992).
The Board finds that after careful review of the veteran's
claims file, VA treatment reports, VA medical examination,
and the veteran's testimony that there is no medical nexus
between the veteran's claimed back disability and the
veteran's military service, i.e. the jeep accident. The VA
examiners stated that any back disorder was likely related to
age or intercurrent cause but not military service. Since
there is no medical evidence of a nexus between an in-service
disease or injury and the claimed disability then the Board
accordingly finds that the veteran is not entitled to service
connection for a claimed lower back disability.
The veteran testified that he hurt his back during military
service and was treated at sick call. He also testified that
he currently took pain pills and was diagnosed with lumbar
strain. The Board notes that a layperson is competent to
testify in regard to the onset and continuity of
symptomatology, including pain. Heuer v. Brown, 7 Vet. App.
379, 384 (1995); (Falzone v. Brown, 8 Vet. App. 398, 403
(1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).
However, a layperson is not considered capable of opining,
however sincerely, in regard to causation of a disability.
Routen v. Brown, 10 Vet. App. 183, 187 (1997), aff'd sub nom
Routen v. West, 142 F3d 1434 (Fed. Cir. 1998), cert denied,
119 S. Ct. 404 (1998); Espiritu v. Derwinski, 2 Vet. App. 492
(1992).
Given these facts, the Board finds that service connection
for claimed lower back disability must be denied.
In reaching this conclusion, the Board has considered the
applicability of the benefit-of-the-doubt doctrine. However,
as the preponderance of the evidence is against the claim,
that doctrine is not applicable. See 38 U.S.C.A. § 5107(b);
38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-
56 (1990).
ORDER
Service connection for claimed lower back disorder is denied.
____________________________________________
C. Mason
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs